Oldal 69 [69]
INTENT TO DO RIGHT?
Third example is taken from reports of executions ordered by Taliban
kangaroo courts in Afghanistan. In 2019, for example, news reported that in an
area of Afghanistan controlled by Taliban two men were accused of robbery and
extortion, and in a sham trial shot to death. Afghanistan Independent Human
Rights Commission noted that such executions are a part of a recurring pattern,
constitute a breach of Afghan law, and are conducted without fair trial.’
In each such example of collective wrongdoing perpetrators do not consider
their actions to be wrong (and at least in cases of communist judge and Taliban
executioner neither unlawful) and share this interpretation with other participants
of criminal practice. It may be objected that neither Taliban executioner, nor
communist judge, nor Auschwitz bookkeeper consider their motivation as a legal
obligation, because no concept of law could be extended to cover such sickening
practices. Or that neither of them perceives their actions as being pursuant to law
in any usual sense of the word.
This is only partly true, that is in part that a conception of law motivating
crimes against humanity in these cases may well fall outside conventional one to
the point of being unrecognizable. Consider, for example, Krylenko, a prosecutor
and judge, and one of the organizers of Soviet mass repression of political enemies,
explaining the role of revolutionary tribunals:®
“The Tribunal is not a court in which legal subtleties and intricacies should be revived;
The Tribunal is an instrument of political struggle against counter-revolution and
against any counter-revolutionary actions. In the Tribunal we are creating a new law,
because in the bourgeois codes it is not possible to find a definition of those crimes
that are committed against the revolution. We are creating new law and new ethical
norms, and our norms are not the ones that guided the representatives of the previous
government.”
Perhaps a similar argument could be made by Taliban executioner, communist
judge, and Auschwitz bookkeeper to the extent that the law enforced by them is new
(or old) law and has little to do with agreed criteria for law. I postpone implications of
‘semantic sting” argument intrinsic to such objection to one the following sections.
7 SalaamTimes, Execution of civilians by Taliban kangaroo court outrages Afghans,
SalaamTimes (09 May 2019), https://afghanistan.asia-news.com/en_GB/articles/cnmi_st/
features/2019/05/09/feature-02. See also e.g., SalaamTimes, Taliban brutality takes center
stage with couple’s execution in Ghor, SalaamTimes (28 April 2020), https://afghanistan.
asia-news.com/en_GB/articles/cnmi_st/features/2020/04/28/feature-02.
8 Nikolaj Krylenko, Za pjat’ let 1918 — 1922 gg. Obvinitel’nye rechi po naibolee krupnym
protsessam, zaslushannym v Moskovskom i Verhovnom revoljucionnyh tribunalah,
Petrograd, Gosizdat, 1923, 22.
° See Ronald Dworkin, Law’s Empire, Cambridge, MA, Belknap Press, 1986, 45.
+ 67 +